9 F. 882 -

9 F1d 882

Case Text

882

FEDERAL REPORTER.

It may be conceded also that a ticket is a receipt for passage money, and not full evidence of the contract to carry, as declared in Quimby's Case, 17 N. Y. 806. But it is, nevertheless, in the hands of the passenger, evidence of his right to be on the train, without which he cannot travel. By delivering it to another he may signify his purpose to assign his contract with defendant, and that should be enough. We have seen that although the tickets were for passage over the Rio Grande road they were not available for that purpose, and the right of the holder to demand of defendant a ticket'or money, what. ever it was, could be maintained. That it was assignable under our statute, so as to give llo right of action to the assignee, would seem to be clear, and the delivery of the ticket, although it should blil called a receipt or token, should be evidence of such assignment. Can it be 'questioned that in delivering the ticket to plaintiff the holder intended to part with his right? If he did so intend the right of action is' how in the plaintiff,although the contract as originally made may have more than is expressed in the ticket. It is also said that the facts appearing in evidence are not setout in the complaint, and, the proof varies from the allegation. The plaintiff llliarges that he purchased the tickets of defendant's agents, and the fact appears to be that they were bought by others, of whom plaintiff bought them. He has said nothing in the complaint of the redemption of the tiokets by defendant, but relied on tlierefusal of the Rio Grande company to honor them. Whatever weight this objection would have, if made at the trial, it is believed, that it comes too late after verdict. The matter iii. issue between the parties was the present,value of the tickets, as defendant must have understood from the complaiIit, and no formal objection can, now be entedained. The motion for new trial will be denied.

CHASE and others v.

UNITED

STATES.

(Circuit UOU1't, D. ,Ma88achu8etts. Janul\ry 31,'1882.)
L DUTIES ON IMPORTS. The facts that imported goods were subject to a lower rate or duty than that charged upon them, and that the action of the principal appraiser was irregular, because he did not see the goods; cannot be set up by the importer in an action to recover the difl'erencebetween the amount paid and that of the finalliquida. tion, where: he wa,s notified by the cpllector of the.liquldation of the entries at the higher rate, and did not take an appeal to the secretary of the treasury.

At Law.

CHASE V. UNJTEDBTATES.

. 883

L. Woodbury and J. P. Tucker, for defendants, (plaintiffs III error.) Prentiss Cummings, for plaintiffs, (defendants in error.) LOWELL, C. J. This action was brought to recover duties alleged to be due upon six iIllPortations of jute, made by the defendants,' into the port of Boston in 1870. The facts in respect to all the importations were substantially alike. The defendants made due entry of the goods, classifying them as manufactures of and the appraiser certified to the correctness of the classification, and the duties, as estimated, were fully paid, and the goods were withdrawn and sold. Some months afterwards the principal appraiser, Mr. Webster, Bagging," that reported that the goods in question', known as "D. is, double-warp bagging,-were suitable for the uses to which cotton bagging is· applied, and that they 'Were dutiable' at a higher· rate th an that at which they had been assessed in the Mr. Webster did not see the goods. The collector thereupon liquidaMd the entlies at the higher rate, of which the defendants were notified; but they did not appeal to the secretary of the treasury. This action is brought to recover the difference between the amount paid and that of the final liquidation. It was admitted, for the pnrposes of the argument, if the facts themselves were competent, that the bagging was in law subject to the lower rate of duty; and that the action of the principal appraiser was irregular becausahe did notaee the goods.· But the'district judge ruled that the defendants could not set up the'se facts, beca,use ,they had neglected to appeal to the secretary. He; relied section 14, St. June 30, 1864, (13 St. 214-,) as construed in:Westray v. U. S. 18 Wall. 822; U. S. v. Cousinery, 7 Ben. 251 ; Watt v. U. S. 15 Blatchf. 29; U. S. v. Phelps, ]7 Blatchf. 312. In this last case, Judge Blatchford said that the three preceding authorities had established the law for the circuit courts, and I agree with him. If Westray v. U. S. does not mean what Chief Justice Waite and Judge Blatchford understand it to mean, we must rely on the slipremecourt to Bet us right. Judgment· affirmed.

on

r

884

FEDERAL REPORTER.

ALBANY CITY NAf. BANK

V.

MAHER,

Receiver, etc.

(Circuit Oourt, No D. New York.

January, 1882.)

TAXATION-LAW OF NEW YORK OF 1881, c. 271, Chapter 271, Laws of New York of 1881, declared to be void on the ground that it is, in effect, a legislative assessment of a tax imposed upon a body of individuals selected out of a general class, without apportionment or equality as between them and the general class, or as between themselves, and without giving them any opportunity to be heard.

Injunction. Amasa J. Parker, for plaintiff. R. W. Peckham, for defendant. WALLACE, D. J. It was decided, upon the motion for a preliminary injunction herein, that the assessment against the shareholders of the complainant was void, because the assessors did not comply with the provision of the statute intended to afford tax-payers an opportunity for the examination and correction of their assessments, which were a condition precedent to the legality of the assessment. Since that decision an act of the legislature has been passed designed to cure the invalidity of the assessment, and that act is now relied upon as a defence to the action. Chapter 271, Laws 1881. That act declares that the amounts of all assessments attempted to be levied and taxes iD;l.posed upon the shareholders in national and state banks in the city of Albany during the year 1880, as the same now appear of record in the assessment roll of the Sixth ward in said city, and now in the hands of the receiver of taxes therein, are hereby assessed and levied upon such shareholders whose names now appear in said assessment roll as assessed upon their bank shares. It further declares that the time limited for any party aggrieved to procure a writ of certiorari to review such assessment upon the ground that it is unequal, in that the assessment has been made at a higher proportionate valuation than other property on the same roll by the same officers, and that the petitioner is or will be injured by such alleged unequal assessment, pursuant to chapter 269 of the Laws of 1880, shall not be deemed to have expired until 15 days after the act becomes a law. With great reluctance this act must be declared in excess of the legislative power. The almost unlimited power of the legislature over taxation has always been acknowledged by the courts, but tbis act is an unprecedented exercise of that power. It will not be contended that